The Hospital v S (a minor)

[2019] NSWSC 642

Supreme Court

New South Wales

Medium Neutral Citation:

The Hospital v S (a minor) [2019] NSWSC 642

Hearing dates:

3 and 10 May 2019

Date of orders:

10 May 2019

Decision date:

03 June 2019

Jurisdiction:

Equity

Before:

Robb J

Decision:

(1) Declare that the Plaintiff, by its responsible medical practitioners and staff, may lawfully discontinue all life sustaining treatment and medical support measures (including withdrawal of mechanical positive pressure ventilation) designed to keep the First Defendant alive in his current state.

(2) Declare that, once (1) has taken place, medical services to be provided at the Hospital to the First Defendant be limited to palliative measures specifically aimed toward comfort, pain relief and relief of anxiety or torment.

(3) Declare that it be lawful for the Hospital to direct a "no cardiopulmonary resuscitation order" in respect of the First Defendant.

Catchwords:

CHILD WELFARE — Inherent parens patriae jurisdiction of the NSW Supreme Court — Involvement of the Court in the making of end-of-life decisions for a child

Legislation Cited:

Mental Capacity Act 2005 (UK)

Cases Cited:

Airedale NHS Trust v Bland [1993] AC 789
Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193
Marion's Case (1992) 175 CLR 218; [1992] HCA 15
Melo v Superintendent of Royal Darwin Hospital (2007) 21 NTLR 197; [2007] NTSC 71
Messiha v South East Health [2004] NSWSC 1061
NHS Trust v Y (Intensive Care Society and others intervening) [2019] 1 All ER 95; [2018] UKSC 46
Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549; [2000] NSWSC 1241
Slaveski v Austin Health [2010] VSC 493
TS & DS v Sydney Children's Hospital Network (“Mohammed's Case”) [2012] NSWSC 1609
W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) [2011] EWHC 2443 (Fam)

Category:

Principal judgment

Parties:

The Hospital (Plaintiff)
S (a minor) (First Defendant)
The Mother (Second Defendant)
The Father (Third Defendant)

Representation:

Counsel:
S Kettle (Plaintiff)
A Cheshire SC (Second and Third Defendants)

  Solicitors:
NSW Ministry of Health (Plaintiff)
Pryor Tzannes & Wallis (Second and Third Defendants)

File Number(s):

2019/122182

Judgment

1. This is a tragic case in which the Court has been asked to make declarations that will have the effect of the discontinuation of all life-sustaining treatment and medical support for a three-year-old boy, who was struck by a motor vehicle in September 2018, and the replacement of that treatment by palliative measures.

The proceedings

2. The proceedings were commenced by summons filed on 18 April 2019 in the Court's duty list by the hospital at which the child has been treated. The other parties to the proceedings are the child and his mother and father.

3. By orders made by the duty judge on 18 April 2019, in order to preserve the anonymity of all concerned, the plaintiff has been given the name the Hospital, the child has been referred to as S, and his parents are to be called the Mother and the Father.

4. Additionally, the duty judge made the following order:

7. An order pursuant to s. 7 [Power to make orders] Court Suppression and Non-Publication Orders Act 2010 (the "Act") prohibiting the publication or other disclosure of any information tending to reveal the identity of S, the Mother, the Father, the Hospital, any witness in the proceeding and any of the medical practitioners, nursing staff or other such persons who have provided or are to provide medical, surgical and or nursing or ancillary treatment to S.

5. That order will continue to have effect indefinitely, unless and until it is varied by order of the Court.

6. Most unfortunately, orders of this type are made necessary by evidence given by the solicitor for the Hospital in this case, to the effect that, despite declarations of the sort that the Hospital has asked for being made in the past, accusations of causing an unlawful death and of making decisions based upon resource considerations, rather than in the best interests of the patient, were made against the medical practitioners involved in a previous case. The accusations were accompanied by death threats aimed towards and vilification of a doctor and the doctor's children, when he was identified in the published judgment concerning end-of-life care by the Court in the exercise of its parens patriae jurisdiction.

7. There is therefore a need for the Court to make an order in the terms that I have set out above. In conformity with that order, I will refer to the medical practitioners whose evidence has been of significance in the present case by an appropriate description, rather than by their names.

8. The duty judge who made the initial orders fixed the matter for hearing before me in the duty list on 3 May 2019, and made various orders to ensure that the proceedings would be ready for final hearing.

9. The parties complied with those orders, and, when the matter came on for hearing, the Mother and the Father opposed the making by the Court of the declarations sought by the Hospital. That was in part because the affidavit of the primary medical practitioner who has given evidence in support of the Hospital's case referred to or extracted parts of medical records produced by other medical practitioners, without those records being exhibited to the affidavit, or otherwise provided to the Mother and the Father. Further, the Mother and the Father expressed a strong view that the Court should not finally deal with the application without three further medical investigations or assessments being carried out.

10. After some discussion between the Court and the legal representatives for the parties, in which the Court expressed the view that it was undesirable for the Court to be required to decide an application such as the present, when there was disagreement as to the admissibility of the evidence, or in circumstances where the Mother and the Father might forever after believe that the claim was prematurely decided, the Hospital graciously agreed to undertake the further investigations or assessments requested by the Mother and the Father. That entailed the Hospital carrying out a 24 hour EEG on the child, undertaking an MRI on the child's brain and spine, and conducting a further neurological assessment by a paediatric neurologist. On that basis, the proceedings were adjourned to 10 May 2019 for final hearing.

11. The Court was informed after the hearing began on 10 May 2019 that the various investigations had been carried out, and the results had been given to and discussed with the Mother and the Father.

12. Senior counsel who appeared for the Mother and the Father informed the Court that, in the light of the evidence, and in particular the results of the additional investigations, the Mother and Father had decided that, while they could not consent to the declarations sought by the Hospital being made, they would not actively oppose the making of those declarations, although they would seek a number of variations to the orders sought by the Hospital.

13. In those circumstances, and considering the grave significance of the relief sought by the Hospital, the Hospital presented its case based upon the affidavit evidence that had been filed, the Hospital tendered additional medical evidence, and the medical practitioner who was the deponent to the affidavit filed by the Hospital, who I will call the Paediatric Intensive Care Specialist (to avoid identifying him by being more specific as to his role) was called to give oral evidence, and to explain the appropriateness of the declarations sought by the Hospital to the Court in person. The doctor was cross-examined by senior counsel for the Mother and Father.

14. Additionally, the affidavits that had been made by the Mother and the Father before the first hearing date were read into evidence.

15. At the conclusion of the evidence and the parties' submissions, I formed the view that the evidence in this case was clear, and dictated a conclusion that the Court should make declarations generally in the form sought by the Hospital. Given the significance of the matter, it seemed to me that the Court should act immediately, rather than to reserve its judgment until appropriate reasons could be given. Accordingly, I announced my judgment to those present in the courtroom.

16. Discussion ensued as to the appropriate form of the declarations, and an agreement was reached between the Hospital and the Mother and the Father that limited the course that the Hospital was authorised to take after the present life-sustaining treatment and medical support had been discontinued.

Orders made

17. I then made the following orders:

1. A declaration that the Plaintiff, by its responsible medical practitioners and staff, may lawfully discontinue all life sustaining treatment and medical support measures, (including withdrawal of mechanical positive pressure ventilation) designed to keep the First Defendant alive in his current state.

2. A declaration that, once (1) has taken place, medical services to be provided at the [Hospital] to the First Defendant be limited to palliative measures specifically aimed toward comfort, pain relief and relief of anxiety or torment.

3. A declaration that it be lawful for the Hospital to direct a "no cardiopulmonary resuscitation order" in respect of the First Defendant.

18. At the request of the Mother and the Father, and with the agreement of the Hospital, I also made the following order: "Judgment be stayed up to and including 23 May 2019 and declarations not be acted upon during that period."

19. I indicated that I would publish reasons to support the orders made by the Court as soon as that was possible. These are those reasons.

Legal principles

20. It will be appropriate to briefly explain the legal basis of the application made by the Hospital and the involvement of the Court in the making of end-of-life decisions for the child.

Introduction

21. The Hospital, represented by a substantial number of highly qualified medical professionals, who have been providing various forms of medical treatment to S since the date of his accident, and who have made every attempt to achieve the best medical outcome possible, have reached a firm consensus that S has no conscious awareness at all; that it is most unlikely that he will ever achieve any awareness; that his injuries are terminal without artificial, mechanical life-sustaining treatment; and that all further treatment will be futile. Furthermore, although there is division of medical opinion about whether S is capable of perceiving any pain or discomfort, some doctors believe that the repeated physical treatment and manipulation of S that is necessary to prolong his life does cause him some pain and discomfort, which he may be capable of feeling. There is a medical consensus that the prolongation of S's life is inconsistent with his personal dignity, and that the further continuation of the life-sustaining treatment that is being given to S would be medically unethical.

22. However, the Mother and the Father have been heroic in their care and aspirations for the recovery of S, and have hoped for a miracle, so that they have remained unwilling to give their parental consent to the discontinuation of all life-sustaining treatment for S, and its replacement by palliative measures, which will almost immediately lead to the child's passing.

23. As S is a minor, the responsibility for the giving of consent to medical procedures that may have an injurious effect on his health and life falls generally on the Mother and the Father. As they have been unwilling to give parental consent to the course proposed by the Hospital, it has been necessary for the Hospital to make the present application, to ensure that, if the Hospital proceeds in the manner that is proposed, neither the Hospital nor participating medical practitioners will be guilty of unlawful conduct in respect of the treatment of the child.

Nature of the parens patriae jurisdiction

24. The application that is before the Court is made upon the basis of what is called the Court's parens patriae jurisdiction. That is an ancient jurisdiction of the Court to make orders for the benefit of persons who cannot take care of themselves. In practical terms, application is often made to the Court to exercise its parens patriae jurisdiction as a last resort, when other measures for the protection of people who need care are not sufficient or effective.

25. In the case known as Marion's Case (1992) 175 CLR 218; [1992] HCA 15, Mason CJ and Dawson, Toohey and Gaudron JJ said the following about the nature of the parens patriae jurisdiction at 258-259 (footnotes omitted):

…

As already mentioned, the welfare jurisdiction conferred upon the Family Court is similar to the parens patriae jurisdiction. The history of that jurisdiction was discussed at some length by La Forest J. in Re Eve. His Lordship pointed out that “[t]he Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined.” In Wellesley v. Duke of Beaufort, Lord Eldon L.C., speaking with reference to the jurisdiction of the Court of Chancery, said:

“[I]t belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.”

When that case was taken on appeal to the House of Lords, Lord Redesdale noted:

“Lord Somers resembled the jurisdiction over infants, to the care which the Court takes with respect to lunatics, and supposed that the jurisdiction devolved on the Crown, in the same way.”

Lord Redesdale went on to say that the jurisdiction extended “as far as is necessary for protection and education”.

To the same effect were the comments of Lord Manners who stated that “[i]t is … impossible to say what are the limits of that jurisdiction”. The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction. That is not to deny that the jurisdiction must be exercised in accordance with principle. However, as appears from the authorities discussed earlier, the jurisdiction has been exercised in modern times so as to permit medical operations on infants which result in sterilization.

No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are merely supervising or reviewing parental or guardian care and control. As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind. So the courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which they have the power.

…

26. As their Honours make clear at 259, albeit in a different medical context, the function of the Court is to decide whether, in the circumstances of the particular case, it is in the best interests of the child to make the orders that are sought. Their Honours said, at 259: "…It is true that the phrase "best interests of the child" is imprecise, but no more so than the "welfare of the child" and many other concepts with which courts must grapple…"

27. The Hospital and the Mother and the Father accept that these principles apply in the present case, and that the Court has jurisdiction to decide whether or not the orders sought by the Hospital should be made. The parties have not made detailed submissions on the legal principles that apply. Consequently, this is not an appropriate case to examine those principles in depth, and it is not necessary for the Court to do so.

Questions that do not need to be decided in this case

28. The questions that need not be considered include whether or not it is necessary for the Hospital to make this application before it discontinues S's present treatment regime. Recently, the Supreme Court of the United Kingdom has decided in NHS Trust v Y (Intensive Care Society and others intervening) [2019] 1 All ER 95; [2018] UKSC 46 (NHS Trust v Y) that there is no requirement of the common law that the Hospital must make an application such as the present, before it can discontinue artificial life preservation measures when it considers them to be futile. The position in the United Kingdom is different to that which applies here, as there exist provisions in the Mental Capacity Act 2005 (UK) and a Code of Practice issued under that Act, together with official professional guidance, to provide a regulatory framework designed to protect the human rights of patients and their families: see Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549; [2000] NSWSC 1241 (Northridge) per O'Keefe J at [108]. In the absence of similar formal arrangements for the protection of patients and their families in this State, it cannot be assumed that the principles adopted by the Supreme Court of the United Kingdom will apply here without some qualification.

29. That principle, extracted from the head note in NHS Trust v Y at 95 is:

…If the provisions of the 2005 Act are followed and the relevant guidance observed, and if there is agreement between the clinical team, the patient's family and others with an interest in the patient's welfare upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. However, if, at the end of the medical process, it is apparent that the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action from those with an interest in the patient's welfare, a court application can and should be made. This possibility of approaching a court in the event of doubts as to the best interests of the patient is an essential part of the protection of human rights. Further, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases…

30. As, in this case, the Mother and the Father have withheld their consent to the Hospital taking the course that it proposes to take, so that the matter should be decided by the Court, it is not necessary for the Court to try to decide the extent to which the approach stated by the Supreme Court of the United Kingdom applies in this State.

31. The judgment of O'Keefe J in Northridge may be relevant to the circumstances in which the authorisation of the Court should be sought, as his Honour explained how the absence of a formal regulatory process to decide upon the best interests of every patient with a prolonged disorder of consciousness, before clinically assisted preservation of life measures can be withdrawn, may make it prudent for the Court's authorisation to be sought in a wider range of cases than might be necessary in the United Kingdom. However, nothing that I say in this judgment should be taken as intended to lay down any general principle, or to disturb any arrangements that may be considered to be proper by medical practitioners and the families of unconscious patients concerning the circumstances in which the administration of life preservation measures should be discontinued in circumstances of futility.

32. It is also unnecessary for the Court to enter upon the question of whether it is within the parental responsibility of the parents of an unconscious child to give their consent to the cessation of artificial life preservation measures, where the continuation of those procedures is considered to be medically futile.

30. In Marion's Case, the plurality decided, at 249, that:

There are, in our opinion, features of a sterilisation procedure or, more accurately, factors involved in a decision to authorise sterilisation of another person which indicate that, in order to ensure the best protection of the interests of a child, such a decision should not come within the ordinary scope of parental power to consent to medical treatment. Court authorisation is necessary and is, in essence, a procedural safeguard…

34. Their Honours justified the ruling that the Court, rather than the parents, has the sole power to authorise the sterilisation of a child, beginning with the observation at 250 that: "As a starting point, sterilisation requires invasive, irreversible and major surgery…" They also referred to "…the significant risk of making the wrong decision…" and that "…the consequences of a wrong decision are particularly grave…"

35. Some of those reasons would apply to the discontinuation of life-sustaining treatment and medical support measures, and, as the consequence of that discontinuation will almost inevitably be the death of the child, it would be hard to argue that the consequences are any less grave than the implementation of a sterilisation procedure.

36. On the other hand, sterilisation involves the implementation of a medical procedure that has grave and irreversible consequences for reasons that were, in the circumstances of Marion's Case, not strictly medical. Marion’s health was not affected by her continuing fertility, so that any decision to sterilise her would have been an assault to her person undertaken for reasons collateral to her physical health. The present case is different, in the sense that the question is whether a truly medical procedure, intended to artificially sustain the life of the child, which in other circumstances may not have been commenced in the first place, should now be discontinued because the continuation of the treatment is considered to be futile. That is ultimately a medical question. Logically, there may be no material difference between a medical decision to cease life-sustaining treatment once it has been commenced, and a decision not to commence that treatment in the first place. Depending upon the circumstances, each decision could lead to the death of the patient. A requirement that the Hospital should always obtain the authorisation of the Court before it discontinued life-sustaining treatment of a patient might logically require that it obtain the authorisation of the Court for a decision not to commence life-sustaining treatment in another case. These considerations would suggest that the Court should only be involved in the process in contentious cases, or where consent on behalf of an unconscious patient is withheld. They also show why it would be unwise for the Court to attempt to lay down any general principle in the absence of the need to do so.

37. As Lady Black said in NHS Trust v Y, speaking for all of the members of the Supreme Court:

…

[92] Before turning to the central questions in the case, it is worth restating the basic position with regard to medical treatment, because it is upon this foundation that everything else is built. Although the concentration is upon the withdrawal of [clinically assisted nutrition and hydration], it must be kept in mind that the fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it. It is lawful to give treatment only if it is in the patient’s best interests. Accordingly, if the treatment would not be in the patient’s best interests, then it would be unlawful to give it, and therefore lawful, and not a breach of any duty to the patient, to withhold or withdraw it…

38. I am unaware of any suggestion in the authorities in this country that medical professionals responsible for the care of children who suffer from a prolonged disorder of consciousness must apply to the Court for authorisation before discontinuing all life-sustaining treatment, and it is strongly implied in the few cases that have considered the matter that such authorisation is not always required. My respectful view is that the observations of Lady Black that have been set out above have a great deal to commend them, and that it would be inappropriate for the Court, as a matter of course, to interfere with the decisions that are conscientiously made by the treating medical practitioners, where the consent of the relevant family members is forthcoming, which in the case of a child will usually be that of the parents. As this State lacks formal procedures that regulate the making of medical decisions in this area, it may be prudent for the medical practitioners whose responsibility it is to make the final decision concerning the discontinuance of life-sustaining treatment to be more ready to consider that "…the way forward is finely balanced…", to use the words of Lady Black at [125], than might be the case if the decision were made in accordance with a formal protocol.

39. However, the essential reason why it is not necessary in the present case to explore in any comprehensive way the question of when it is necessary for the Court's approval to be sought to the discontinuation of all life-sustaining treatment is that, not only has the Hospital sought that approval, but that, on the evidence that I will consider below, the way forward in the present case is by no means finely balanced, and the evidence requires a conclusion that the further artificial prolongation of the child's life would be futile and inappropriate.

40. I should also mention that there is arguably a question in this case concerning the form in which the relief should have been given. The orders that I have made, which are set out above at par 17, take the form of declarations that it will be lawful for the Hospital to act in the manner the subject of each of the declarations. In Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 at [18]-[21], Brereton J (as his Honour then was) suggested that, where the medical procedure falls within the ambit of the responsibility of the parents to give consent on behalf of a child, the exercise by the Court of its parens patriae jurisdiction to give that consent, when it is withheld by the parents, should take the form of the granting of consent, rather than the authorisation of the proposed medical procedure. His Honour suggested that the granting of authorisation by the Court was only appropriate in a case, such as that considered by the High Court in Marion's Case, where the parents did not have the responsibility to give consent on behalf of the child, and it was a matter for the Court to decide whether or not to authorise the procedure. The better view of the declarations that I have already made is that they have the effect of authorising the discontinuance of S's life-sustaining treatment. They do not have the effect of consenting to that discontinuance on behalf of S. I have made the orders in that form without the question of whether the Court's authorisation is required being determined. As the active parties were not concerned with this distinction, and as the granting of an authorisation will implicitly carry consent with it, I do not consider this distinction to be of significance in the present case.

Parens patriae power in this case

41. There is authority in this country that the Court's parens patriae jurisdiction empowers the Court, in the case of an unconscious child, to intervene to make orders, where that is determined to be in the best interests of the child, to require the medical practitioners responsible for the treatment of the child to implement or continue life-sustaining treatment, to authorise its discontinuance, or to decline to require its continuance at the suit of family members who are not prepared to consent to that discontinuance.

42. In Northridge, O'Keefe J said:

…

[23] The law in Australia is well settled that it is lawful for, and the duty of, a hospital which or doctor who has undertaken the care of a patient who is unconscious, to carry out such treatment as is necessary and appropriate to safeguard the life, health and welfare of that patient, even though such patient is in no position to give or refuse consent to the course taken.

[24] There is undoubted jurisdiction in the Supreme Court of New South Wales to act to protect the right of an unconscious person to receive ordinary reasonable and appropriate (as opposed to extra-ordinary, excessively burdensome, intrusive or futile) medical treatment, sustenance and support. In this day and age ordinary reasonable and appropriate treatment, for a person of the age and condition of Mr Thompson, would extend to the administration of antibiotics and appropriate feeding. The court also has jurisdiction to prevent the withdrawal of such treatment, support and sustenance where the withdrawal may put in jeopardy the life, good health or welfare of such unconscious individual. What constitutes appropriate medical treatment in a given case is a medical matter in the first instance. However, where there is doubt or serious dispute in this regard the court has the power to act to protect the life and welfare of the unconscious person.

…

43. His Honour was followed by Howie J in Messiha v South East Health [2004] NSWSC 1061 at [25], where his Honour said:

[25] I appreciate that the Court on such an application as the present is concerned with the best interest of the health and welfare of the patient: Northridge at [22] and it is not bound to give effect to the medical opinion, even where, as here, it is unanimous. However, it seems to me that it would be an unusual case where the Court would act against what is unanimously held by medical experts as an appropriate treatment regime for the patient in order to preserve the life of a terminally ill patient in a deep coma where there is no real prospect of recovery to any significant degree. This is not to make any value judgment of the life of the patient in his present situation or to disregard the wishes of the family and the beliefs that they genuinely hold for his recovery. But it is simply an acceptance of the fact that the treatment of the patient, where, as here, the Court is satisfied that decision as to the appropriate treatment is being made in the welfare and interest of the patient, is principally a matter for the expertise of professional medical practitioners: Northridge at [24].

44. See also Melo v Superintendent of Royal Darwin Hospital (2007) 21 NTLR 197; [2007] NTSC 71 at [25], [26]; Slaveski v Austin Health [2010] VSC 493 at [31]; and TS & DS v Sydney Children's Hospital Network (“Mohammed's Case”) [2012] NSWSC 1609 at [78].

45. In the last-mentioned case, Garling J dismissed an application by the parents of a seriously ill nine-month-old child to compel the medical staff at the hospital in which he was being treated to apply medical ventilation, rather than by treating him only with oxygen delivered through continuous positive airway pressure. Garling J said:

…

[86] What is being sought from the Court in this application is that in the exercise of its parens patriae jurisdiction, it has the responsibility to order the doctors to do something which they in the exercise of their professional judgment do not wish to do. This necessarily intrudes into their professional obligations, it seeks to dictate to them how they must perform those obligations. Lord Donaldson MR considered a like situation in Re J (a Minor) (Wardship: Medical Treatment) [1990] 3 All ER 930. He said at 934:

“Before considering these submissions, it is sensible to define the relationship between the court, the doctors, the child and its parents.

The doctors owe the child a duty to care for it in accordance with good medical practice recognised as appropriate by a competent body of professional opinion (see Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582). This duty is, however, subject to the qualification that, if time permits, they must obtain the consent of the parents before undertaking serious invasive treatment.

The parents owe the child a duty to give or to withhold consent in the best interests of the child and without regard to their own interests.

The court when exercising the parens patriae jurisdiction takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless in the end the responsibility for the decision whether to give or to withhold consent is that of the court alone.

It follows from this that a child who is a ward of court should be treated medically in exactly the same way as one who is not, the only difference being that the doctors will be looking to the court rather than to the parents for any necessary consents.

No one can dictate the treatment to be given to the child, neither court, parents nor doctors. There are checks and balances. The doctors can recommend treatment A in preference to treatment B. They can also refuse to adopt treatment C on the grounds that it is medically contra-indicated or for some other reason is a treatment which they could not conscientiously administer. The court or parents for their part can refuse to consent to treatment A or B or both, but cannot insist on treatment C. The inevitable and desirable result is that choice of treatment is in some measure a joint decision of the doctors and the court or parents.

This co-operation is reinforced by another consideration. Doctors nowadays recognise that their function is not a limited technical one of repairing or servicing a body. They are treating people in a real life context. This at once enhances the contribution which the court or parents can make towards reaching the best possible decision in all the circumstances.”

[87] Although the Master of the Rolls was there considering a matter involving a ward of the court, no different principle applies in this case where the Court is being asked to exercise its parens patriae jurisdiction.

46. There was a suggestion on behalf of the Mother and the Father in this case that the decision of Garling J was not applicable, because it did not involve the authorisation of the discontinuation of life-sustaining treatment, but it involved a refusal by his Honour to order that such treatment be administered. While this Court does not know the facts of Mohammad's case in detail, it is at least probable that the same or similar considerations apply, given that a decision not to commence life-sustaining treatment may have the same consequence as its discontinuation.

Absence of need to balance factors

47. There is one further matter of legal principle that should be mentioned. A submission was made on behalf of the Mother and the Father, based upon the decision of Baker J in W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) [2011] EWHC 2443 (Fam), that the Court either was required to, or should, take the course of deciding whether to authorise the discontinuation of S's life-sustaining treatment by engaging in what could be described as a balance sheet exercise of weighing the advantages and disadvantages to S of making the order sought by the Hospital. That approach has not yet been accepted as part of the law of this State, and it should be left to another occasion, when the need arises, to decide whether that approach is appropriate.

48. The balance sheet approach had been considered by the House of Lords in Airedale NHS Trust v Bland [1993] AC 789 (Bland’s case), which was discussed by Baker J at [61] and following. The principal speech was delivered by Lord Goff. In the extract from Lord Goff's speech extracted by Baker J at [64], his Lordship drew the following distinction at 868-9:

“a distinction may be drawn between (1) cases in which, having regard to all the circumstances (including, for example, the intrusive nature of the treatment, the hazards involved in it, and the very poor quality of the life which may be prolonged for the patient if the treatment is successful), it may be judged not to be in the best interests of the patient to initiate or continue life-prolonging treatment, and (2) cases such as the present in which, so far as the living patient is concerned, the treatment is of no benefit to him because he is totally unconscious and there is no prospect of any improvement in his condition. In both classes of case, the decision whether or not to withhold treatment must be made in the best interests of the patient. In the first class, however, the decision has to be made by weighing the relevant considerations…By contrast, in the latter class of case, of which the present case provides an example, there is in reality no weighing operation to be performed. Here the condition of the patient, who is totally unconscious and in whose condition there is no prospect of any improvement, is such that life-prolonging treatment is properly regarded as being, in medical terms, useless…[F]or my part I cannot see that medical treatment is appropriate or requisite simply to prolong a patient’s life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition. It is reasonable also that account should be taken of the invasiveness of the treatment and of the indignity to which, as the present case shows, a person has to be subjected if his life is prolonged by artificial means…

49. As was the situation in Bland's case, the present case falls within category (2), so "there is in reality no weighing operation to be performed".

Facts of this case

50. As I have noted above, although the Mother and the Father have not consented to the orders sought by the Hospital, they did not actively oppose the making of those orders at the hearing. It appears that their position was one of opposition until they had received the results of the three assessments that the Hospital agreed on 3 May 2019 to undertake. In the result, there was no contest concerning the background facts or as to the evidence of S's medical condition or his prognosis. In those circumstances, it will be sufficient for the Court to relate the effect of the evidence in broad terms, sufficient to explain the reasons why the orders sought by the Hospital were made, but it will not be necessary to examine the medical evidence in detail.

51. The Paediatric Intensive Care Specialist gave evidence that he has been involved with S's care since the date of the accident.

52. The doctor explained that S sustained multiple injuries, including a traumatic brain injury and a high (C 0/1) spinal cord injury. Presumably as a result of the high spinal cord injury (which would have caused immediate paralysis), S also suffered a cardiorespiratory arrest at the scene, received approximately 10 minutes of bystander cardiopulmonary resuscitation (CPR) and a further 20-25 minutes of CPR by the ambulance crew before spontaneous circulation was restored. S also suffered numerous other serious injuries, which it is not necessary to record.

53. S developed profound shock, presumably due to a combination of blood loss, cardiac failure and the spinal cord injury, and required adrenaline and noradrenaline infusions. He developed evidence of kidney injury and abnormal liver function, presumably due to the cardiac arrest associated with absent or poor supply of oxygen to all of his organs.

54. At presentation at the Hospital, S's brain injury, which was primarily ‘anoxic’ but also 'traumatic', was considered to be at the very severe end of the spectrum, so that it would be described as devastating or catastrophic. From the outset there was widespread medical consensus that S had suffered an unsurvivable neurological injury. In addition, S's high spinal cord injury would, on its own, invariably be associated with ventilator-dependent quadriplegia.

50. Despite his injuries, S underwent full resuscitation, including control of a life-threatening pelvic haemorrhage, and he was stabilised and mechanically ventilated in the Intensive Care Unit (ICU) at the Hospital.

51. After 11 weeks of immobilisation, the spinal surgeon felt that the spinal fracture would have healed and be stable enough to no longer require full spinal precautions. This healing referred to the spinal bones, and not to the spinal cord which was not able to heal, and subsequent MRI scans of the spinal cord have confirmed that it has 'withered away’ at the site of the original injury.

52. Brain scans carried out on S (CTs and MRIs) have demonstrated progressive global thinning of the brain tissue with hydrocephalus (a build-up of fluid in the brain).

53. The Paediatric Intensive Care Specialist set out in his affidavit pertinent extracts from reports and notes made by a neurosurgeon, a paediatric neurologist, a paediatric intensive care specialist from another hospital, and a further paediatric neurologist. It will be sufficient to set out the finding of the last-mentioned paediatric neurologist in November 2018:

Clinical examination and imaging is consistent with a profound cortical imaging (sic) with no prospect of any meaningful recovery. The combination of midbrain and thalmic injury means that his cortex is fully disconnected from his body and he will never be able to talk, walk or meaningfully interact with his environment. In my opinion persistent ventilator support would not be in his interest and further supportive treatment with the hope of any meaningful recovery is futile.

59. The Paediatric Intensive Care Specialist gave evidence of an attempt to treat S's hydrocephalus, following the obtaining of a second opinion from a senior paediatric neurologist from a different hospital, but the treatment did not improve S's state.

60. The Paediatric Intensive Care Specialist gave evidence that, at present, S has recurrent episodes where his body 'stiffens' with extension of his arms and legs and arching of his back. These are thought to be mainly exaggerated spinal reflexes. It is impossible to know for certain whether S finds these episodes painful or distressing, however, children with lesser degrees of brain dysfunction experiencing these episodes find them very painful. The Paediatric Intensive Care Specialist accepted in cross-examination that there was not unanimity of medical opinion that S was capable of feeling pain as a result of these episodes. As I understand it, if that is so it is because S's lack of consciousness is so profound that he is completely incapable of feeling the severe pain that would be experienced by other persons with less significant brain dysfunction.

61. S remains ventilated via a tube placed into his trachea. This tube must be suctioned regularly to ensure it remains patent, as well as to clear secretions. It is not certain whether this suctioning causes distress to S or not. The Paediatric Intensive Care Specialist said that cognitively intact individuals would find it uncomfortable and it would usually stimulate coughing and gagging. S must also be turned regularly to prevent pressure sores developing.

62. The Paediatric Intensive Care Specialist gave evidence that, since 18 March 2019, about six months following the accident, S has been extensively reassessed by a number of specialists. There is a consensus among all specialists that S remains in an unresponsive coma (and not a 'post-coma unresponsive' or 'minimally-responsive' state), with evidence of significant brain stem dysfunction six months following his initial injury. The collective opinion remains that S is unlikely to ever recover meaningful neurological function.

63. The external senior paediatric neurologist who was called in to give a second opinion concluded in his report dated 25 February 2019: "In my opinion, the continuation of intensive care support is not likely to be in his benefit as it is invasive and provides futile therapy for an otherwise severely injured child."

64. S was examined by a number of independent intensive care specialists in the weeks following the six month anniversary of the accident. The Hospital's rehabilitation team has also conducted repeated assessments of S and concluded that there was "unlikely to be any improvement in conscious level now to the point of compatibility with any quality of life, awareness of self or meaningful interaction with environment".

65. The Paediatric Intensive Care Specialist gave evidence of S's current state, which includes that: he is mechanically ventilated; he is fed and hydrated by gastric tube; he is incontinent of urine and faeces; he requires suctioning from his mouth, nose and throat; his eyes are taped closed which, when tested, show no obvious reaction to light; he is supine in bed; his vital signs are stable; gag and cough reflexes are absent; when disconnected from the ventilator there is no spontaneous respiratory effort; and he remains in an unresponsive coma.

66. It is in these circumstances that the Paediatric Intensive Care Specialist, consistently with all other relevant medical opinion, states the opinion that the further continuation of the present life-sustaining treatment is futile, and that the proper medical course is for that treatment to be discontinued and for S to be given palliative treatment. The consequence, as described by the doctor, will be to reduce S's life expectancy to minutes to hours.

67. The Paediatric Intensive Care Specialist concluded his evidence by saying:

…

40. I am of the view, as are the treating clinicians, that the current treatment, if continued, may lead to multiple complications, such as infection, ulcers, and sores with no realistic prospect of recovery, whether spontaneous or from treatment, whether in its present form or otherwise. The consensus view is that [S] has recovered to the full extent possible.

41. As a member of a team dedicated to caring for critically ill children and their families, I can assure [the Court] that our sole focus is on achieving the best outcome primarily for [S], but also for his family. The ICU team has been concerned for quite some time now the treatments we are providing to [S] are overly burdensome, may be painful, and do not provide any material benefit to [S]. That is, we believe that we are currently not doing what we believe is in [S's] best interest, and this situation understandably causes significant moral distress among clinicians dedicated to caring for children.

42. Court orders to permit the palliative approach proposed in my view are in [S's] best interests and welfare.

68. The paediatric neurologist who carried out the final neurological examination concluded as follows:

…The extent of this injury precludes significant neurological improvement or recovery. In my opinion, it is clinically futile and not advisable, and can be considered unethical for [S's] dignity to pursue further investigations or interventions.

69. While, as a lay observer, I am not competent to interpret the results of the further imaging that occurred after the first hearing, it is plain that there has been continuing, substantial physical deterioration of S's brain and spinal cord with the effect that the prospect of any substantial recovery is practically hopeless.

Conclusion

70. At the end of the hearing, the evidence that I have summarised above caused me to form the clear opinion that it was in the best interests of S to give to the Hospital the authority to proceed largely in the manner set out in the declarations sought by the Hospital, and I accordingly made the orders outlined at par 17 above.

71. The present case is a clear one as there was unanimity of medical opinion, the opinion was highly persuasive, and it was not challenged. Although the Court is not required to act upon even unanimous medical opinion, the opinion in this case appeared to me to be entirely sound and warranted by the evidence.

72. Difficult logical and moral questions may arise in the determination of what is in the best interests of a child who is and will be permanently comatose. Fundamental to the determination of what is in the best interests of an unconscious patient is that they receive ordinary reasonable and appropriate medical treatment, sustenance and support, as O’Keefe J said in Northridge. That right is unaffected where the circumstances are that the patient may never be able consciously to appreciate whether or not they are receiving the medical treatment to which they are entitled. The right to receive medical treatment is not, however, equivalent to a right to the perpetuation of life irrespective of the circumstances. It may not be in the best interests of the patient to be given medical treatment that is excessively burdensome, intrusive or futile. The agony arises from the need to make a choice, and the choice must be made on essentially medical considerations. It may in some cases fall to the Court to make the final choice, but the Court must always look to the medical considerations, as it is the right of the patient to receive the medical treatment that is proper in the circumstances that is the essential criterion of what is in the patient’s best interests.

73. That is why the overwhelming force of the medical evidence in this case justified the conclusion that it was in S’s best interests that the orders sought by the Hospital be made.

74. Further, in my view, even the existence of a significant possibility that S may be suffering pain and discomfort as a result of his life-sustaining treatment is a positive reason for the Court to conclude that it is in S's best interests for the treatment to be discontinued. The Court must also take into account the likelihood that S will in the future suffer further ailments and contract infections as a result of his physical state and the effects of his treatments.

75. I also respectfully share the view, expressed by Lord Goff in Bland's case that is set out above as follows: "It is reasonable also that account should be taken of the invasiveness of the treatment and of the indignity to which, as the present case shows, a person has to be subjected if his life is prolonged by artificial means…" In the absence of any possibility of conscious existence, the dignity of a person is a real and significant factor which the Court should protect in that person's best interests.

76. For these reasons, in the present case, I have made the declarations sought by the Hospital, subject to amendments and additions and as set out in par 17 above.

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Decision last updated: 05 June 2019